Toback v. GNC Holdings, Inc. et al

Filing 40

ORDER denying 36 Motion to Stay. Signed by Judge James I. Cohn on 10/10/2013. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-80526-CIV-COHN/SELTZER
ROBERT TOBACK, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
GNC HOLDINGS, INC., GNC
CORPORATION, and GENERAL NUTRITION
CENTERS, INC.,
Defendants.
/
ORDER ON MOTION TO STAY DISCOVERY
THIS CAUSE is before the Court upon Defendants' Motion to Stay Discovery
[DE 36] ("Motion to Stay"). The Court has considered the Motion to Stay, Plaintiff's
Response [DE 38], and the record in this case, and is otherwise advised in the
premises.
This class action arises from Defendants' alleged misrepresentations regarding
the health benefits of their TriFlex line of products. See generally First Am. Class Action
Compl. [DE 39] ("Complaint"). The action is one of a handful of lawsuits across the
country alleging that Defendants' representations pertaining to the TriFlex products
harmed consumers.1 On August 8, 2013, the plaintiffs in some of these TriFlex Actions
moved before the United States Judicial Panel on Multidistrict Litigation ("JPML") to
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The relevant such proceedings are: Calvert v. GNC Corp., No. 13-01697 (N.D.
Ohio); Distefano-Presutti v. GNC Corp., No. 13-01100 (W.D. Pa.); Howard v. GNC
Corp., No. 13-06490 (W.D.N.Y.); Lerma v. GNC Corp., No. 13-00933 (S.D. Cal.);
Toback v. GNC Holdings, Inc., No. 13-80526 (S.D. Fla.) (collectively, the "TriFlex
Actions").

consolidate the suits, including the instant case, in the Western District of Pennsylvania.
See In re GNC Corp. TriFlex Prod. Litig., No. 2482 (J.P.M.L.) ("MDL No. 2482"), DE 1.
On August 21, 2013, the United States Court of Appeals for the Third Circuit
issued its opinion in Carrera v. Bayer Corp., No. 12-2621, __ F.3d __, 2013 U.S. App.
LEXIS 17479 (3d Cir. Aug. 21, 2013). In Carrera, the Third Circuit addressed the
showing necessary to satisfy the ascertainability requirement of Federal Rule of Civil
Procedure 23. Id. at *8-25. On August 28, 2013, in light of what they considered to be
negative precedent set by the Carrera opinion, the movants in MDL No. 2482 withdrew
their motion to consolidate. MDL No. 2482, DE 12. On August 30, 2013, Defendants
herein filed their own motion to consolidate the actions in the Western District of
Pennsylvania. In re Gen. Nutrition Corp. TriFlex Prod. Litig., No. 2491 (J.P.M.L.) ("MDL
No. 2491"), DE 1. A number of plaintiffs in the TriFlex actions, including Plaintiff herein,
now oppose consolidation. MDL No. 2491, DE 16-18. Further, the plaintiffs in
Distefano-Presutti, the only TriFlex Action filed in the Western District of Pennsylvania,
voluntarily dismissed their action. Distefano-Presutti v. GNC Corp., No. 13-01100 (W.D.
Pa.), DE 10. Defendants' motion to consolidate in MDL No. 2491 remains pending.
On September 4, 2013, Defendants filed the Motion to Stay in this action,
seeking a stay until the JPML decides their motion to consolidate in MDL No. 2491.2
Defendants argue that a stay will conserve judicial resources in the eventuality that
2

Defendants nominally seek only a stay of discovery in this action. DE 36 at 9.
However, trial herein is set for the beginning of May 2014. DE 24 at 1. A stay of
discovery in this action even for "four months or less," which is the time in which
Defendants speculate they will receive a ruling on the consolidation motion in MDL
No. 2491 (DE 36 at 7), therefore would effectively require a continuance of trial and
pretrial deadlines to allow for full and fair litigation of this matter. The Court thus views
Defendants' Motion to Stay not only as a request to stay discovery, but also as a
request to stay this action in its entirety pending a ruling by the JPML.
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consolidation is granted, Plaintiff will not be prejudiced by a stay, and Defendants will
suffer the hardship of the cost of duplicative litigation if no stay is granted. DE 36 at 5-9.
Plaintiff disagrees, arguing that consolidation of the TriFlex Actions is uncertain and that
Defendants' attempt to consolidate in the Western District of Pennsylvania is mere
forum shopping. DE 38 at 4-6.
The Court has broad discretion to stay proceedings and otherwise manage its
docket. Clinton v. Jones, 520 U.S. 681, 706 (1997). When considering a motion to stay
a case while a motion to consolidate is pending before the JPML, the Court may
consider: (1) potential prejudice to the non-moving party; (2) hardship and inequity to
the moving party if the action is not stayed; and (3) the judicial resources that would be
saved by avoiding duplicative litigation if the cases are in fact consolidated. Rivers v.
Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). The Court may also
consider whether it believes a consolidation order is likely. Manual for Complex
Litigation § 22.35 (4th ed. 2004); Giles v. POM Wonderful LLC, No. 10-61684, 2010
U.S. Dist. LEXIS 122992, at *2 (S.D. Fla. Nov. 8, 2010).
The Court finds that a stay of this action is not warranted. That Defendants have
not moved for a stay in any of the other pending TriFlex Actions, and have even moved
to dismiss the Calvert action subsequent to filing the Motion to Stay herein (Calvert v.
GNC Corp., No. 13-01697 (N.D. Ohio), DE 9), belies Defendants' argument that they
seek to conserve resources by avoiding duplicative litigation. Moreover, none of the
other TriFlex Actions involve the Florida laws under which Plaintiff asserts his claims,
thus the Court is not persuaded that Defendants will be harmed by inconsistent rulings.
Finally, it is unfair to Plaintiff to stay resolution of this case indefinitely when

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consolidation is far from certain, given the small number of pending TriFlex Actions at
issue, the absence of a pending TriFlex Action in the forum where Defendants seek to
consolidate, and the opposition of the TriFlex Action plaintiffs to consolidation. See
MDL No. 2491, DE 16-18. It is therefore
ORDERED AND ADJUDGED that Defendants' Motion to Stay Discovery [DE 36]
is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 10th day of October, 2013.

Copies provided to:
Counsel of record via CM/ECF

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